If you have children and are considering separation, then inevitably they will be your first concern and priority. You will need to discuss and decide where they will live, and how often they will spend time with both parents. Often parents are able to agree on these important decisions, in which case no Court intervention will be necessary.
However, sometimes things are more complex and it may not be possible to agree what should happen, or you may have a specific concern about something, for example one parent might want to move abroad. If this is the case, then it is possible to make an application to the Court under the Children & Families Act 2014, which came into force on 22 April 2014, and introduced the concept of Child Arrangements Orders.
Child Arrangements Orders have now replaced Residence and Contact, and before them Custody and Access, which disappeared a long time ago. Child Arrangements Orders are Court Orders that regulate the living and contact arrangements for a child, or deal with specific issues relating to a child, following parental separation. If it is not possible to reach agreement about where a child should live, or how often they should see their parents, then we would recommend that the parties consider trying alternative dispute resolution either by round table meetings or by using the Collaborative Law process.
If you do end up going to Court, the Court will consider all the circumstances of the case, and also specific factors which we detail on the attached fact sheet. For specific advice about your individual circumstances, please contact one of our Solicitors at email: email@example.com.
Often the most worrying issue for parents considering separation or divorce is what the impact of their separation will be on their children. There are many guides available, either online or in hardback, some of which we have highlighted in our reading section, which can help with understanding how different age children cope with such changes, and also how to talk to children about separation. If parents are able to work together to support their children, then obviously this is the ideal approach, but we appreciate it is not always possible. If parents do agree where the children are going to live and how often they will see their other parent, then usually there is no need for any Court Order to be made.
With the change in the law in April 2014 it is now no longer necessary to complete a Statement of Arrangements form with the Divorce Petition, as the Court no longer has to certify that there are satisfactory arrangements in place for the children. The responsibility for this is therefore left with the parents. This reinforces the rationale that it is the parents who divorce, not the children. Sometimes though it is not possible to agree where the children should live, or how often they should see their other parent, or maybe there are issues which cause you to have concern about your child’s welfare, or in relation to a specific issue, for example one parent wishes to move abroad. If that is the case then we would urge you to discuss your issues with a family law specialist. Often it will be possible to resolve such issues, either through the mediation process or by using the collaborative law process. Both of these approaches focus on non-confrontational, non-Court based resolution, and mean that you will be able to agree what works best for you and your children. You can agree precisely where the children will live, whether their care should be shared between you, what should happen in the holidays etc. There are no “rules” provided the interests and welfare of the children are the paramount consideration, and this means that you will be able to achieve flexibility to sort out an agreement specific to your family’s needs. It also means that if and when the situation changes and you are still unable to talk direct to it about the child’s other parent, and then you can return to either the mediation process or collaborative law process and revisit any new issues. If however neither of these approaches looks likely to work in your circumstances, then there are various applications that can be made to Court. The concept of child Custody and Residence no longer exists, neither does Access or Contact. Instead, pursuant to the Children & Families Act 2014 we now have what is known as Child Arrangements Orders. Child Arrangements Orders are Court Orders that regulate the living and contact arrangements for a child, following parental separation. Some might say that this is simply a restatement of the old Contact and Residence Orders, but there are some changes. One of the key changes is that if you wish to now make an application for a Child Arrangements Order then you must first attend a Mediation Information and Assessment Meeting or MIAM, prior to making the application. There are some exceptions to this, but by and large this is what must occur before the application is made. At one of these sessions you will have explained to you what alternative dispute arrangements are available, such as Mediation, Arbitration, Collaborative Law and you can then explore whether or not these might be more suitable for you.
In determining any application the Court have to take into account various factors, which are set out in the Children Act 1989 and are known as the Welfare Check List. These are:
a) The ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding.
b) His emotional, physical and educational needs.
c) The likely effect on him of any change in his circumstances.
d) His age, sex, background, and any characteristics of his which the Court considers relevant.
e) Any harm which he has suffered or is at risk of suffering.
f) How capable each of his parents and any other person in relation to whom the Court considers the question to be relevant is meeting his needs.
g) The range of powers available to the Court under this Act in the proceedings in question. The list is not comprehensive and the Court obviously have to consider the individual circumstances of the case, but hopefully this will give you an overview of the sort of things a Court would look at if you felt that a Court Order was necessary. Fundamentally the Court has, as its paramount consideration, the child or children’s welfare.
If you would like to discuss any of the above then please contact one of our solicitors on 01908 262680 or email us at firstname.lastname@example.org. The contents of this fact sheet are general principles and do not constitute legal advice. Every case is different and you should seek independent legal advice in relation to your specific circumstances
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